1
EXHIBIT 4.2
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MESA INC.
and
MESA OPERATING CO,
Issuers
AND
__________________________,
Trustee
____________________
SUBORDINATED INDENTURE
Dated as of _____ __, 1994
____________________
Unsecured Subordinated Debentures, Notes and Other
Evidences of Indebtedness
================================================================================
2
CROSS-REFERENCE TABLE
TIA Section Indenture Section
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310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.05; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.12
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means Not Applicable.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.05. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.08. Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.09. Treasury Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.10. Temporary Securities; Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.02. Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.06. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.07. Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.08. Terms of Securities to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.03. Certificate to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.04. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.05. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE 5
SUCCESSORS
SECTION 5.01. When Issuers May Merge, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.10. Eligibility, Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.11. Preferential Collection of Claims Against Issuers . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.02. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.03. Satisfaction and Discharge of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.04. Application by Trustee of Money or U.S. Government Obligations . . . . . . . . . . . . . . . . 23
SECTION 8.05. Repayment of Money or U.S. Government Obligations by Paying Agent . . . . . . . . . . . . . . . 23
SECTION 8.06. Return of Money, Securities or U.S. Government Obligations . . . . . . . . . . . . . . . . . . 23
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ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.04. Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.05. Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.06. Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 10
SUBORDINATION OF THE SECURITIES
SECTION 10.01. Subordination to Senior Debt of the Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 10.02. Permitted and Prohibited Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 10.03. Rights of Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.04. Renewals and Extensions of Senior Debt of the Issuers . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.05. Obligation of Issuers to Pay Securities Not to be Impaired . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . . . 28
SECTION 10.07. Application by Trustee of Monies Deposited With It . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.08. Securityholders Authorize Trustee to Effectuate Subordination of Securities . . . . . . . . . . . . 28
SECTION 10.09. Right of Trustee to Hold Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.10. Article 10 Not to Prevent Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.11. No Fiduciary Duty Created to Holders of Senior Debt of the Issuers . . . . . . . . . . . . . . . . . 29
SECTION 10.12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10.13. Article Applying to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11.03. Communications by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.08. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.09. Interest Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.10. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.11. Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.12. Record Date for Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.14. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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SECTION 11.15. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.16. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.17. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.18. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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SUBORDINATED INDENTURE, dated as of ____ __, 1994, among MESA INC., a
corporation incorporated and existing under the laws of the State of Texas, and
MESA OPERATING CO., a corporation incorporated and existing under the laws of
the State of Delaware (collectively, the "Issuers"), and
__________________________, a ____________________________ (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Issuers' unsecured
subordinated debentures, notes and other evidences of indebtedness from time to
time authenticated and delivered pursuant to this Indenture, which may be
issued in one or more series, each such series ranking pari passu with each
other series:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Board Resolution" means a copy of a resolution delivered to the
Trustee and certified (i) by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Company Board and to be in full force
and effect on the date of such certification and (ii) by the Secretary or
Assistant Secretary of Operating to have been duly adopted by the Operating
Board and to be in full force and effect on the date of such certification.
"Business Day" means any day that is not a Legal Holiday.
"Company" means MESA Inc., a Texas corporation, until a successor
replaces it and thereafter such successor.
"Company Board" means the board of directors of the Company or any
authorized committee of such board of directors.
"Debt", with respect to any person, means the following, whether
outstanding on the date hereof or thereafter created or incurred: (1) any
liability of such person (a) for borrowed money, (b) evidenced by a note,
debenture or similar instrument (including a purchase money obligation) given
in connection with the acquisition of or exchange for any property or assets
(other than inventory or similar property acquired in the ordinary course of
business), including securities and Debt or (c) in respect of letters of credit
issued for its account; (2) any liability of others described in the preceding
clause (1) which the person has guaranteed or which is otherwise its legal
liability or which is secured by assets of such person; and (3) any amendment,
renewal, extension or refunding of any such liability described in the
preceding clauses (1) and (2); provided, however, that "Debt" of a person shall
not include any liability of such person for compensation to employees or for
inventory or similar property acquired in the ordinary course of business or
for services.
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"Default" means any event which is, or after notice or the passage of
time, or both, would be, an Event of Default.
"Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall be
designated by the Issuers pursuant to Section 2.01 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such person,
shall mean or include all such persons. "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of any date of determination.
"Global Security" means a Security registered in the name of the
Depositary or its nominee evidencing all or part of a series of Securities,
which is executed by the Issuers and authenticated and delivered to the
Depositary or pursuant to the Depositary's instructions, all in accordance with
this Indenture and pursuant to a written order of the Issuers signed by two
Officers of each of the Issuers.
"Holder" or "Securityholder" means a person in whose name a Security
is registered in the Security Register.
"Indenture" means this Subordinated Indenture as amended or
supplemented from time to time pursuant to the applicable provisions of this
Indenture, and shall include the form and terms of each particular series of
Securities established pursuant to Section 2.01 hereof.
"Interest Payment Date" means the date on which payment of an
installment of interest on the Securities of any series is due.
"Issuers" means (i) the Company, until a successor replaces the
Company pursuant to the applicable provisions of this Indenture, and thereafter
such successor and (ii) Operating, until a successor replaces Operating
pursuant to the applicable provisions of this Indenture, and thereafter such
successor.
"Material Subsidiary" means any consolidated subsidiary of the Company
(whether a corporation or a partnership or other entity not organized as a
corporation) if such consolidated subsidiary would be deemed a "significant
subsidiary" under the rules and regulations promulgated by the SEC under the
Securities Act.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, pursuant to a sinking fund or
otherwise.
"Obligations" means all principal, interest, premiums, penalties, fees
and other liabilities payable under the documentation governing any liability.
"Officer" means, with respect to an Issuer, the Chairman of the
Board, Vice Chairman of the Board, President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
such Issuer.
"Officers' Certificate" means a certificate signed by two Officers of
each of the Issuers.
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"Operating" means Mesa Operating Co., a Delaware corporation, until a
successor replaces it and thereafter such successor.
"Operating Board" means the board of directors of Operating or any
authorized committee of such board of directors.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Trustee or the Issuers.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.02.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or other agency or political subdivision thereof.
"Principal" of a Security means the principal of the Security, plus
the premium, if any, on the Security. In determining whether the Holders of
the requisite principal amount of any series of Original Issue Discount
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of any Original Issue
Discount Security for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the Stated Maturity thereof pursuant to
Section 6.02.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 2.01.
"Representative" means the indenture trustee or other trustee, agent
or representative for any holder of Senior Debt.
"SEC" means the Securities and Exchange Commission.
"Securities" means the unsecured subordinated debentures, notes and
other evidences of indebtedness (including any Global Securities) authenticated
and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" shall have the meaning given to such term in the Board
Resolution or indenture supplemental hereto pursuant to which Securities may be
issued in accordance with Section 2.01.
"Senior Debt Default" when used with respect to an Issuer means any
default in the payment of the principal of or sinking fund installments, if
any, due with respect to, fees in respect of or interest on, any Senior Debt of
such Issuer or any default, or any event which, with notice or lapse of time or
both, would constitute a default, in any other agreement, term or condition
contained in any agreement under which any Senior Debt of such Issuer is issued
or secured.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
principal is due and payable.
"Subsidiary" means (i) a corporation a majority of whose outstanding
capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by one
or more Subsidiaries or by the Company and one or more Subsidiaries or (ii) any
other person (other than
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a corporation) in which the Company, one or more Subsidiaries or the Company
and one or more Subsidiaries, directly or indirectly, at the date of
determination thereof, have at least a majority beneficial ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
Section 77aaa-77bbbb) as in effect on the date first above written, except to
the extent that any subsequent amendment thereto shall retroactively apply to
this Indenture.
"Trustee" means the party named as such above or any other trustee
appointed with respect to the Securities of any series as contemplated by
Section 2.01, in each case until a successor replaces it with respect to the
Securities of one or more series pursuant to the applicable provisions of this
Indenture, and thereafter with respect to the Securities of such one or more
series shall mean the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable at the issuer's
option.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
---- ----------
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.07
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Security Register" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the
meanings assigned to them by such statute or rule, except as provided in
Section 7.10.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
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(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and
transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall
be in such form as shall be established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and in case such form is not established by
supplemental indenture, such form shall be approved by the Trustee if the
Trustee's rights or obligations are adversely affected thereby, and such form
may further have such legends, notations or endorsements as may be required by
law, stock exchange rules or usage.
Each Security shall be in fully-registered form and shall be dated the
date of its authentication.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate delivered to the Trustee, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series, the
following terms with respect to such series, and thereafter such terms shall be
deemed to be a part of this Indenture (it being understood and agreed that, in
the case of any terms to be established by or pursuant to a Board Resolution
which, if established, would adversely affect the rights and obligations of the
Trustee, such terms shall not be deemed to be a part of the Indenture unless
and until they shall have been approved by the Trustee):
(1) the title of the Securities of such series (which
shall distinguish the Securities of such series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities of such series
authenticated and delivered upon transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section 2.06,
2.07, 2.10, 3.06 or 9.05);
(3) the date or dates on which the principal of the
Securities of such series is payable or the manner of determining such
date or dates;
(4) the rate or rates at which the Securities of such
series shall bear interest, if any, or the method or methods of
calculating such rate or rates of interest and the date or dates from
which such interest shall accrue;
(5) the Interest Payment Dates on which such interest
shall be payable and the Regular Record Dates for the interest payable
on any Interest Payment Date;
(6) the place or places where the Principal of and
interest on the Securities of such series shall be payable;
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(7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which Securities of
such series may be redeemed, in whole or in part, at the option of the
Issuers;
(8) the obligation, if any, of the Issuers to redeem or
purchase Securities of such series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which, and the
terms and conditions upon which Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities shall
be issuable;
(10) if Securities of such series constitute Original
Issue Discount Securities, the portion of the principal amount of
Securities which shall be payable upon declaration of acceleration
thereof pursuant to Section 6.02;
(11) any covenants of the Issuers, for the benefit of the
Holders of Securities of such series, in addition to those set forth
in Article 4;
(12) any Events of Default with respect to the Securities
of such series in addition to those set forth in Section 6.01;
(13) whether the Securities of such series shall be
issued, in whole or in part, in the form of one or more Global
Securities and, in such case, the Depositary for such Global Security
or Securities;
(14) the identity of any trustee, authenticating agent,
Paying Agent or Registrar with respect to the Securities of such
series, if other than the Trustee;
(15) the period or periods within which, the price or
prices at which, and the terms and conditions upon which Securities of
such series may be converted into other securities of an Issuer;
(16) the definition of the term "Senior Debt" as used in
this Indenture;
(17) whether the proviso to Section 10.02(a) shall apply
to the Securities, and if so the duration of the period referenced in
such proviso; and
(18) any other terms with respect to the Securities of
such series (which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution and set forth in the Officers' Certificate
delivered to the Trustee or as provided pursuant to an indenture supplemental
hereto with respect to such series. All Securities of any one series need not
be issued at the same time, and unless otherwise provided, a series may be
reopened for issuance of additional Securities of such series.
SECTION 2.02. Execution and Authentication. An Officer of each of
the Issuers shall sign the Securities for the Issuers by manual or facsimile
signature and the seal of each of the Issuers shall be reproduced on the
Securities and attested by the manual or facsimile signature of an authorized
Officer of the Issuers.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.
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A Security shall not be valid until authenticated by the Trustee by
manual signature. The Trustee's certificate of authentication of all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
_________________________, as Trustee
By:_________________________
Authorized Signatory
The manual signature of the Trustee on a certificate of authentication
in the form hereinabove provided for shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall at any time and from time to time authenticate
Securities for original issue, upon a written order of the Issuers signed by
two Officers of each of the Issuers.
In authenticating Securities of a particular series, and accepting the
additional responsibilities under this Indenture in relation to such series of
Securities, the Trustee shall be entitled to receive and (subject to Section
7.01) shall be fully protected in relying upon:
(1) certified copies of the charter and bylaws of each of
the Issuers;
(2) each Board Resolution relating to the Securities of
such series, and if the form or forms of the Securities of such series
and the terms with respect thereto are established by a Board
Resolution, an Officers' Certificate (i) approving the form or forms
of the Securities of such series and the terms with respect thereto,
to the extent such terms have been established (and, if the Securities
of such series are Original Issue Discount Securities, setting forth
such facts as are necessary to compute amounts due upon acceleration,
if such facts are not specified in the form of Security) and (ii)
stating that all conditions precedent to the issuance and
authentication of the Securities of such series have been complied
with;
(3) an executed supplemental indenture (if any) relating
to such Securities;
(4) an Opinion of Counsel, which shall state
(a) that the terms with respect to the Securities
of such series have been established by or pursuant to a Board
Resolution or by a supplemental indenture as permitted by, and
in conformity with, the provisions of this Indenture;
(b) that the Securities of such series, when
authenticated and delivered by the Trustee and issued by the
Issuers in the manner and subject to any further conditions
specified in such Opinion of Counsel that are reasonably
acceptable to the Trustee, will constitute valid and binding
obligations of the Issuers, enforceable against the Issuers in
accordance with their terms, except insofar as (i) such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought; and
(c) that all conditions precedent to the
execution and delivery by the Issuers of the Securities have
been complied with; and
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If all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate or the
Opinion of Counsel otherwise required pursuant to Section 2.01 and this Section
2.02 at or prior to the time of authentication of each Security of such series
if such documents have been delivered at or prior to the authentication upon
original issuance of the first Security of such series.
The Trustee shall not be required to authenticate any Securities if
such action may not lawfully be taken or will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture in a manner which
is not reasonably acceptable to the Trustee.
The aggregate principal amount of Securities of any series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
series set forth in or pursuant to the Board Resolution or supplemental
indenture relating to such series delivered pursuant to this Section 2.02,
except as authorized pursuant to Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so, provided that only the Trustee may
authenticate Securities pursuant to Section 2.07. Each reference in this
Indenture to authentication by the Trustee includes authentication by an
authenticating agent. An authenticating agent has the same rights as an Agent
to deal with the Issuers or an Affiliate of an Issuer.
SECTION 2.03. Registrar and Paying Agent. The Issuers shall maintain
an office or agency where Securities may be presented to the registrar
("Registrar") for registration of transfer or for exchange and an office or
agency where Securities may be presented to the paying agent ("Paying Agent")
for payment; provided, however, that at the option of the Issuers payment of
interest may be made by check mailed on or before the due date to the address
of the person entitled thereto as such address shall appear in the register of
the Securities provided for in this Section. The Registrar shall keep a
register of the Securities (the "Security Register") and of their transfer and
exchange. The Issuers may appoint one or more co-registrars and one or more
additional paying agents with respect to any one or more series. The
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Issuers shall notify the Trustee of the name and
address of any Registrar or Paying Agent not a party to this Indenture. If the
Issuers fail to maintain a Registrar or Paying Agent for the Securities, the
Trustee shall act as such. The Issuers initially appoint the Trustee as Paying
Agent and Registrar.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Issuers shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will (i) hold in trust for the benefit of Securityholders of any
series or the Trustee all money held by the Paying Agent for the payment of
Principal of or interest on the Securities of such series, (ii) notify the
Trustee of any default by the Issuers in making any such payment and (iii) pay
to the Trustee all sums so held in trust by such Paying Agent, upon written
request of the Trustee at any time during the continuance of an Event of
Default. If either of the Issuers acts as Paying Agent, it shall segregate the
money and hold it as a separate trust fund. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon doing
so, the Paying Agent shall have no further liability for the money.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar with respect to Securities of any series, the
Issuers shall furnish to the Trustee on or before each Interest Payment Date
for such Securities (and on dates to be determined in the manner provided in
Section 2.01 for any series of Original Issue Discount Securities which by
their terms bear interest only after Maturity), but in no case less frequently
than semiannually, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of the Securities of such series.
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SECTION 2.06. Transfer and Exchange. Subject to the provisions of
Section 2.10, where Securities are presented to the Registrar with a request to
register transfer or to exchange them for an equal principal amount of
Securities of the same series of other denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. The Registrar shall not be required to register the
transfer or exchange of (i) Securities of any series during a 15-day period
beginning at the opening of business 15 days before the day of mailing of a
redemption notice pursuant to Section 3.03 with respect to Securities of such
series or (ii) any Security selected for redemption in whole or in part, except
the unredeemed portion of a Security redeemed in part. To permit registration
of transfer and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. No service charge shall be made to any Securityholder for
any transfer or exchange of Securities, except that the Issuers may require
payment of a sum sufficient to cover any tax or other governmental charge which
may be imposed in relation to any such transfer or exchange, other than
exchanges pursuant to Section 2.10, 3.06 or 9.05. Notwithstanding the
foregoing, Securities of a series may be exchanged only for Securities of the
same series having identical terms.
SECTION 2.07. Replacement Securities. If the Holder of a Security
claims that the Security has been lost, mutilated, destroyed or wrongfully
taken, the Issuers shall issue and the Trustee shall authenticate a replacement
Security of the same series having identical terms if the Trustee's
requirements are met. If required by the Trustee or the Issuers, such Holder
shall provide an indemnity bond sufficient in the judgment of the Trustee and
the Issuers to protect the Issuers, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Security
is replaced.
Every replacement Security is an additional obligation of the Issuers.
SECTION 2.08. Outstanding Securities. The Securities outstanding at
any time are all the Securities authenticated by the Trustee, except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Subject to the provisions of Section 2.09, a Security does not cease
to be outstanding because an Issuer or an Affiliate of an Issuer holds the
Security.
SECTION 2.09. Treasury Securities. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by an Issuer or an Affiliate of
an Issuer shall be disregarded and deemed not to be outstanding for the
purposes of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded.
SECTION 2.10. Temporary Securities; Global Securities. (a) Until
definitive Securities are ready for delivery, the Issuers may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have variations that the Issuers consider appropriate for
temporary Securities. Without unreasonable delay, the Issuers shall prepare
and the Trustee shall authenticate definitive Securities of such series in
exchange for such temporary Securities.
(b) If the Issuers shall establish pursuant to Section 2.01 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Issuers shall execute and the Trustee
shall, in accordance with Section 2.01 and pursuant to a written order of the
Issuers signed by two Officers of each
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of the Issuers, authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instruction and
(iv) shall bear any customary legend reasonably required by the Depositary and
shall further bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive form,
this Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section 2.10 or Section
2.06, unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
None of the Issuers, the Trustee, any Paying Agent or the Registrar
has any direct obligation or responsibility to participants of the Depositary
or beneficial owners of interests in Securities. Without limiting the
generality of the foregoing, none of the Issuers, the Trustee, any Paying Agent
or the Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in a Global Security (including the maintenance, review and
supervision of any such records), for the delivery of any notice to any owner
of a beneficial interest, for the selection of the beneficial owners to receive
payment in the event of any partial redemption of Securities, or for any
consent given or other action taken by the Depositary as owner of the
Securities.
If at any time the Depositary for the Securities of a series notifies
the Issuers that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Securities of a
series shall no longer be registered or in good standing under the Exchange Act
or other applicable statute or regulation, the Issuers shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Issuers within 90 days after the Issuers receive such notice or become aware of
such condition, the Issuers will execute, and the Trustee, upon receipt of a
written order of the Issuers signed by two Officers of each of the Issuers
instructing the Trustee to authenticate and deliver definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Issuers may at any time and in their sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. Furthermore, if there shall have occurred and be continuing an
Event of Default or a Default with respect to any series of Securities, the
Trustee may determine that the Securities of such series shall no longer be
represented by a Global Security or Securities. In any such event, the Issuers
will execute, and the Trustee, upon receipt of a written order of the Issuers
signed by two Officers of each of the Issuers instructing the Trustee to
authenticate and deliver definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Issuers pursuant to Section 2.01 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange, in whole
or in part, for Securities of such series in definitive form on such terms as
are acceptable to the Issuers and such Depositary. Thereupon, the Issuers
shall execute and the Trustee shall authenticate and deliver, without charge:
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(i) to each person specified by the Depositary, a new
Security or Securities of the same series of any authorized
denomination as requested by such person in an aggregate principal
amount equal to and in exchange for such person's beneficial interest
in the Global Security; and
(ii) to the Depositary, a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
SECTION 2.11. Cancellation. The Issuers at any time may deliver
Securities of any series to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee shall cancel
all Securities surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of cancelled Securities as the Issuers direct.
The Issuers may not issue new Securities of any series to replace Securities of
such series that have been paid or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Issuers default in a
payment of interest on any of the Securities, they shall pay the defaulted
interest plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Holders of such Securities on a
subsequent special record date. The Issuers shall fix the record date and
payment date after making arrangements satisfactory to the Trustee for the
deposit of such amounts with the Trustee for payment and after consultation
with the Trustee regarding the selection of such dates. At least 15 days
before the record date, the Issuers shall mail to the Holders of such
Securities a notice that states the record date, payment date, and amount of
interest to be paid.
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. Notices to Trustee. The Issuers may elect to redeem
Securities of any series in accordance with the provisions of such Securities;
provided, however, that if an Event of Default shall have occurred and be
continuing, the Securities of any series may not be redeemed in whole or in
part, unless (i) the Securities of all series are redeemed in whole or (ii) the
Securities of all series are redeemed in part and the principal amount to be
redeemed is prorated among all Holders so that all Holders of each series
receive in redemption of their outstanding Securities the same the principal
amount per $1,000 of Securities (provided, however, that if the Securities of
any such series are Original Issue Discount Securities, for purposes of this
clause (ii), such pro ration shall be based upon each $1,000 that would be due
and payable on the redemption date in the event of a declaration of
acceleration of the Stated Maturity thereof pursuant to Section 6.02). The
election of the Issuers to redeem Securities of any series in accordance with
the provisions of such Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuers, the
Issuers shall, at least 45 days before the redemption date (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
redemption date and in the case of any redemption of less than all of the
Securities of any series (or, where redemption provisions of any series of
Securities are not identical as to each Security within the series, in case of
any redemption at the election of the Issuers of less than all the Securities
with identical redemption provisions) the principal amount of the Securities of
such series to be redeemed and shall deliver to the Trustee such
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documentation and records as shall enable the Trustee to select the Securities
to be redeemed pursuant to Section 3.02.
SECTION 3.02. Selection of Securities to be Redeemed. If less than
all of the Securities of a series (or, where the redemption provisions of any
series of Securities are not identical as to each Security within the series,
if less than all the Securities with identical redemption provisions) are to be
redeemed, the Trustee shall, subject to Section 3.01, select the Securities to
be redeemed by such method as the Trustee shall deem fair and appropriate. The
Trustee shall make the selection not more than 45 days before the redemption
date from outstanding Securities of such series (or, if the redemption
provisions of all of the Securities of such series are not identical, from
Securities of such series with identical redemption provisions) not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities of any series that have denominations larger than the
minimum principal denomination for such series. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a redemption date, the Trustee shall, in the name of the
Issuers and at the Issuers' expense, mail a notice of redemption to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) if less than all the outstanding Securities of a
series (or, in the case of series of Securities in which the
redemption provisions are not identical as to each Security within the
series, less than all of the Securities of a series with identical
redemption provisions) are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that interest on Securities called for redemption
ceases to accrue on and after the redemption date; and
(7) that the redemption is pursuant to the terms of a
sinking fund, if such is the case.
SECTION 3.04. Effect of Notice of Redemption. Once notice of a
redemption is mailed, Securities called for redemption become due and payable
on the redemption date at the redemption price. Upon surrender to the Paying
Agent, such Securities shall be paid and redeemed at the redemption price,
together with interest accrued thereon to the redemption date; provided,
however, that installments of interest becoming due on or prior to the
redemption date shall be payable to the Holders of such Securities, or one or
more previous Securities evidencing all or a portion of the same debt as that
evidenced by such particular Securities, registered as such at the close of
business on the relevant record date according to their terms and the
provisions of Section 2.12.
SECTION 3.05. Deposit of Redemption Price. On or before the
redemption date, the Issuers shall deposit with the Paying Agent money
sufficient to pay the aggregate redemption price of and accrued interest on all
Securities to be redeemed on that date.
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SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same series, having terms identical to those of
the Securities surrendered, equal in principal amount to the unredeemed portion
of the Security surrendered.
SECTION 3.07. Sinking Fund. Each sinking fund payment provided for
by the terms of Securities of any series shall be applied to the redemption of
such Securities as provided for by the terms of such Securities and this
Section 3.07.
In satisfaction of any minimum or optional sinking fund payment
required or permitted to be made pursuant to the terms of Securities of any
particular series (or, where the sinking fund provisions of each Security
within such series are not identical, then pursuant to the terms of the
Securities with identical sinking fund provisions), the Issuers may (i) deliver
to the Trustee Securities of that series (or, where the sinking fund provisions
of the Securities of such series are not identical, Securities of that series
having identical sinking fund provisions) which have not previously been called
for redemption and which the Issuers have not previously delivered to the
Trustee for cancellation or (ii) notify the Trustee of its election to credit
against the required sinking fund payment the principal amount of any
Securities of that series (or, if applicable, any Securities of that series
with identical sinking fund provisions) which have been redeemed otherwise than
pursuant to minimum sinking fund payment requirements with respect to the
Securities of such series (or, if applicable, with respect to the Securities of
such series with identical sinking fund provisions); provided, however, that
such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such minimum or optional sinking fund payment shall be
reduced accordingly.
Not less than 45 days prior to each sinking fund payment date (unless
a shorter notice shall be satisfactory to the Trustee) for any particular
series of Securities (or, where the sinking fund provisions of the Securities
within such series are not identical, for the Securities of such series having
identical sinking fund provisions), the Issuers will give written notice to the
Trustee of the amount of the next succeeding sinking fund payment (including
any optional sinking fund payment which is permitted to be made by the terms of
the Securities) for that series pursuant to the terms of that series (or, if
applicable, for such Securities pursuant to the terms of such Securities), the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by crediting Securities
against the required sinking fund payment pursuant to the preceding paragraph
of this Section and will also deliver to the Trustee any Securities to be so
credited. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Issuers in the manner provided in Section 3.03. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 3.04 and 3.06.
SECTION 3.08. Terms of Securities to Govern. Notwithstanding any
other provision of this Article 3, if any provision of any Security of any
series shall conflict with any provision of this Article, the provision of such
Security shall govern.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Issuers shall pay the
principal of and any interest on the Securities on the dates and in the manner
provided in the Securities. Principal and interest shall be considered paid on
the date due if the Paying Agent holds on that date money deposited with it by
or on behalf of the Issuers sufficient to pay all principal and interest then
due.
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The Issuers shall pay interest on overdue principal at the rate borne
by such Securities or otherwise as provided in the Securities; they shall pay
interest on overdue installments of interest at the same rate to the extent
permitted by law.
Each payment by the Issuers to the Trustee or the Paying Agent shall
be accompanied by a written notice from the Issuers that specifies the series
to which such payment relates.
SECTION 4.02. SEC Reports. Each Issuer shall furnish to the Trustee,
within 15 days after it files them with the SEC, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that such Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Issuers also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.03. Certificate to Trustee. The Issuers covenant and agree
to furnish to the Trustee, within 90 days after the end of each fiscal year of
the Issuers, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of each of the
Issuers as to each of such officer's knowledge of the Issuers' compliance with
all conditions and covenants under this Indenture; provided, for purposes of
this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.04. Maintenance of Office or Agency. The Issuers will
maintain in The City of New York, an office or agency of the Trustee, Registrar
and Paying Agent where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, exchange,
purchase or redemption, and where notices and demands to or upon the Issuers in
respect of the Securities and this Indenture may be served. The Issuers shall
give prompt written notice to the Trustee of the location, and of any change in
the location, of any such office or agency (other than a change in the location
of the office of the Trustee). If at any time the Issuers shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 11.10.
SECTION 4.05. Further Assurances. From time to time whenever
reasonably requested by the Trustee, the Issuers will make, execute and
deliver, or cause to be made, executed or delivered, any and all such further
and other instruments and assurances as may be reasonably necessary or proper
to carry out the intention of or to facilitate the performance of the terms of
this Indenture or to secure the rights and remedies of the Holders of
Securities of any series provided for in this Indenture, including, but not
limited to, furnishing all necessary information to the Trustee in connection
with calculations and tax reporting relating to any Original Issue Discount
Securities that may be issued by the Issuers hereunder.
ARTICLE 5
SUCCESSORS
SECTION 5.01. When Issuers May Merge, etc. Neither Issuer shall
consolidate or merge into, or sell, assign, transfer or lease all or
substantially all of its assets to, any person unless:
(1) the person is a corporation organized and existing
under the laws of the United States of America or any State thereof or
the District of Columbia;
(2) the person assumes by supplemental indenture all the
obligations of such Issuer under the Securities and this Indenture;
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(3) immediately after the transaction no Default shall
exist; and
(4) an Officers' Certificate and Opinion of Counsel have
been delivered to the Trustee to the effect that the conditions set
forth in the preceding clauses (1) through (3) above have been met.
The corporation formed by or resulting from any such consolidation or
merger, or which shall have received all or substantially all of such assets,
shall succeed to and be substituted for such Issuer with the same effect as if
it had been named herein as a party hereto, and thereafter, except in the case
of a lease of all or substantially all of such assets, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities and may liquidate and dissolve.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" with respect
to Securities of any series occurs if:
(1) there is a default in the payment of interest on any
Security of such series when the same becomes due and payable, which
Default continues for a period of 30 days;
(2) there is a default in the payment of the Principal of
any Security of such series when the same becomes due and payable at
Maturity, upon redemption or otherwise;
(3) an Issuer fails to comply with any of its other
agreements with respect to Securities of such series or this Indenture
(other than a covenant included in this Indenture solely for the
benefit of any series of Securities other than such series or a
covenant which has not been breached with respect to such series),
which Default continues for a period of 30 days after notice of such
Default is given to the Issuers by the Trustee or the Holders of at
least 25% in principal amount of the Securities of such series;
(4) there occurs a default under any bond, indenture,
note or other evidence of indebtedness for money borrowed by Issuer or
any Material Subsidiary (including a default with respect to
Securities of any series other than such series) or under any
mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money
borrowed by an Issuer or any Material Subsidiary (including this
Indenture) with a principal amount then outstanding in excess of
$10,000,000, whether such indebtedness exists now or shall hereafter
be created, which default shall constitute a failure to pay any
portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect
thereto or results in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled;
(5) an Issuer or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief
against it in an involuntary case;
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(c) consents to the appointment of a Custodian
for it or for all or substantially all of its property; or
(d) makes a general assignment for the benefit of
its creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against an Issuer or any
Material Subsidiary in an involuntary case;
(b) appoints a Custodian of an Issuer or any
Material Subsidiary or for all or substantially all of the
property of such Issuer or such Material Subsidiary; or
(c) orders the liquidation of an Issuer or any
Material Subsidiary, and the order or decree remains unstayed
and in effect for 90 days; or
(7) there occurs any other Event of Default with respect
to the Securities of such series specified in the terms of such
series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
SECTION 6.02. Acceleration. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee by notice to
the Issuers, or the Holders of at least 25% in principal amount of the
Securities of that series by notice to the Issuers and the Trustee, may declare
the principal (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued interest on all the Securities of that
series to be due and payable immediately. Upon such declaration, the principal
(or specified amount) of and accrued interest on all the Securities of that
series shall be due and payable immediately. The Holders of a majority in
principal amount of the Securities of that series by notice to the Trustee and
the Issuers may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default with respect to the Securities of that series have been cured or waived
except nonpayment of principal or interest that has become due solely because
of the acceleration.
SECTION 6.03. Other Remedies. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on the
Securities of that series or to enforce the performance of any provision of the
Securities of that series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
outstanding principal amount of the Securities of any series by notice to the
Trustee may waive an existing Default with respect to that series and its
consequences, except a Default in the payment of the principal of or interest
on any Security of that series.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate outstanding principal amount of the Securities of all series affected
(voting as one class) may direct the time, method and place of
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conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it with respect to the Securities of such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, is unduly prejudicial to the rights of another
Securityholder of such series or any other series, or would involve the Trustee
in personal liability.
SECTION 6.06. Limitation on Suits. A Holder of Securities of any
series may pursue a remedy with respect to this Indenture or the Securities
only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to Securities of that series;
(2) the Holders of a majority in principal amount of the
Securities of that series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; and
(5) during such period, the Holders of a majority in
aggregate outstanding principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the
request;
provided, however, that it is understood and intended, and is expressly
covenanted by each Holder of every Security of a series with every other Holder
and the Trustee, that no Holders of such series of Securities shall have any
right in any manner whatsoever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the Holders of any
other series of Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture (but without abrogating the provisions of
Article 10), the right of any Holder of a Security to receive payment of
principal of and interest on the Security, on or after the respective due dates
expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) with respect to Securities occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuers for the whole amount of principal (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) and interest remaining unpaid with respect to the Securities as to
which an Event of Default has occurred.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to an Issuer, its creditors or its
property.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
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Second: to Holders of Securities in respect of which or for
the benefit of which such money has been collected, for amounts due
and unpaid on such Securities for principal (or, if such Securities
are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms that series) and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest,
respectively; and
Third: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
such Securityholders.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in principal amount of the Securities of any series.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions required by the terms of this Indenture to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
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(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Certificate or Opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
of any series and may otherwise deal with the Issuers or an Affiliate of an
Issuer with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Issuers' use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication.
SECTION 7.05. Notice of Defaults. If a Default in respect of the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to the Holders of the Securities of that series
a notice of the Default within 90 days after it occurs. Except in the case of
a Default in payment of the principal or interest on any Security, or in the
payment of any sinking fund or purchase fund installment, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Securities of that series.
SECTION 7.06. Reports by Trustee to Holders. If required by TIA
Section 313(a), within 60 days after the reporting date stated in this Section
7.06, the Trustee shall mail to Securityholders of each series a brief report
dated as of such reporting date that complies with TIA Section 313(a). The
Trustee shall also comply with TIA Section 313(b). For purposes of this
Section 7.06, the reporting date shall be May 15 of each year. The first
reporting date will be the first May 15 following the issuance of the first
series of Securities hereunder.
A copy of each report at the time of its mailing to Securityholders of
each series shall be filed with the SEC and each stock exchange on which the
Securities of each series are listed. The Issuers will notify the Trustee of
the listing of Securities of any series on a stock exchange.
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SECTION 7.07. Compensation and Indemnity. The Issuers shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee upon
request for all reasonable expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
The Issuers shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with the acceptance or
administration of this Indenture. The Trustee shall notify the Issuers
promptly of any claim for which it may seek indemnity. The Issuers shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Issuers shall pay the reasonable fees and
expenses of such counsel. The Issuers need not pay for any settlement made
without their consent.
The Issuers need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee if the acts or omissions of the
Trustee, if any, relating to such loss or liability, breached any standard of
care applicable to or imposed on the Trustee for such acts or omissions.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Issuers' obligation to compensate the Trustee and to pay and
reimburse the Trustee for such expenses, disbursements and advances pursuant to
the provisions of this Section 7.07 shall not be subordinate to the payment of
Senior Debt pursuant to Article 10.
SECTION 7.08. Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign at any time with respect to the Securities of
one or more series by so notifying the Issuers. The Holders of a majority in
principal amount of the Securities of any series may remove the Trustee with
respect to such series by so notifying the Trustee and the Issuers. The
Issuers may remove the Trustee with respect to the Securities of one or more
series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of any one or
more series, the Issuers shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 7.10. Within one year after
the successor Trustee takes office, the Holders of a majority
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in principal amount of the Securities of each series may appoint a successor
Trustee with respect to the Securities of their respective series to replace
the successor Trustee for the Securities of such series appointed by the
Issuers.
If a successor Trustee with respect to the Securities of any series
does not take office within 60 days after the retiring Trustee with respect to
the Securities of that series resigns or is removed, the retiring Trustee, the
Issuers or the Holders of at least 10% in principal amount of the Securities of
that series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of that
series.
If the Trustee fails to comply with Section 7.10, with respect to the
Securities of one or more series, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to the Securities of that series and the appointment of a
successor Trustee with respect to the Securities of that series.
In the case of the appointment of a successor Trustee with respect to
all Securities, the successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to all Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Issuers, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (ii) if the retiring Trustee is not retiring with respect to all
series of Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee, with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring, shall continue to be
vested in the retiring Trustee and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and the successor Trustee shall have all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates. The successor
Trustee shall mail a notice of its succession to the Holders of all Securities
of that or those series to which the appointment of such successor Trustee
relates. The retiring Trustee shall promptly transfer all property held by it
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, subject to the lien provided for in Section
7.07. No successor Trustee with respect to Securities of any series shall
accept appointment as provided in this Section 7.08 unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under the
provisions of Section 7.10.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility, Disqualification. This Indenture shall
always have a Trustee with respect to the Securities of each series which
satisfies the requirements of TIA Section 310(a)(1) and (5). The Trustee
shall always have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report
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of condition or shall be a wholly-owned subsidiary of a bank, a trust company
or a bank holding company having, together with its subsidiaries, a reported
combined capital and surplus of at least $25,000,000. The Trustee is subject
to TIA Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9); it being understood that for the
purposes of this Indenture, with respect to Securities of any series, the
provisions of TIA Section 310(b) with respect to conflicting interests
relating to "other securities" shall be interpreted to include Securities of
each other series and with respect to "other indentures" shall include the
provisions of this Indenture relating to the Securities of such other series.
SECTION 7.11. Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. Satisfaction and Discharge of Indenture. If at any
time (a) the Issuers shall have paid or caused to be paid the principal of and
interest on all the Securities of any series outstanding hereunder, as and when
the same shall have become due and payable, or (b) the Issuers shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.07 or paid), and if, in any such case, the Issuers shall
also pay or cause to be paid all other sums payable hereunder by the Issuers
with respect to Securities of such series, then this Indenture shall cease to
be of further effect with respect to Securities of such series (except as to
(i) rights of registration of transfer and exchange, and the Issuers' right of
optional redemption, if any, (ii) substitution of apparently mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of the Holders to
receive payments of principal thereof and interest thereon from the trust fund
established pursuant to Section 8.02, and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, from the trust fund
established pursuant to Section 8.02, (iv) the rights, obligations and
immunities of the Trustee hereunder, (v) the rights of the Securityholders of
such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, (vi) all other obligations of
the Issuers in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08 and 8.06 and
(vii) the Issuers' rights pursuant to Sections 7.08, 8.05 and 8.06), and the
Trustee, on demand of the Issuers accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Issuers, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to Securities of such series. The Issuers agree to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 8.02. Defeasance. For purposes of Section 8.01, the Issuers
shall be deemed to have paid the Principal of and interest on Securities of any
series outstanding hereunder as and when the same shall have become due and
payable, if the Issuers shall have irrevocably deposited or caused to be
deposited in trust with the Trustee funds in cash and/or U.S. Government
Obligations sufficient without reinvestment thereof to provide for timely
payment of Principal of and interest on the Securities of such series to Stated
Maturity or redemption, as the case may be, not theretofore delivered to the
Trustee for cancellation; provided, however, that (i) in order to have money
available on a payment date to pay principal or interest on the Securities of
such series, the U.S. Government Obligations shall be payable as to principal
and interest on or before such payment date in such amounts as will provide the
necessary money; and (ii) the Issuers shall obtain an Opinion of Counsel (which
may be based on a ruling from, or published by, the Internal Revenue Service)
to the effect that Holders of the Securities of that series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax on
the same amounts and in the same manner and at the same
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times, as would have been the case if such deposit, defeasance and discharge
had not occurred; and provided, further, however, that notwithstanding the
foregoing, with respect to any series of Securities which shall at the time be
listed for trading on The New York Stock Exchange, there shall be no deposit of
funds in cash and/or in U.S. Government Obligations with the Trustee to pay the
principal amount, the redemption price or any installment of interest in order
to discharge the Issuers' obligation in respect of any such payment if at such
time the rules of The New York Stock Exchange prohibit such deposit with the
Trustee.
SECTION 8.03. Satisfaction and Discharge of Securities. Securities
of a series shall be deemed to have been paid in full as between the Issuers
and the respective Holders (and future Holders) of Securities of such series
upon the satisfaction and discharge of the Indenture with respect to Securities
of such series pursuant to Section 8.01, except that in the case of such
satisfaction and discharge as a result of compliance with Section 8.02, the
Securities of such series shall be deemed to have been paid in full as between
the Issuers and the respective Holders (and future Holders) of Securities of
such series only if the deposit in trust with the Trustee by the Issuers of the
funds in cash and/or U.S. Government Obligations as provided in Section 8.02 is
not subsequently deemed a preference under the United States Bankruptcy Code as
then in effect.
SECTION 8.04. Application by Trustee of Money or U.S. Government
Obligations. Subject to Section 8.06, all money or U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.02 shall be held in trust and
applied by it to the payment, either directly or through the Paying Agent to
the Holders of the particular Securities of such series for the payment or
redemption of which such money or U.S. Government Obligations shall have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest.
SECTION 8.05. Repayment of Money or U.S. Government Obligations by
Paying Agent. In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series, all money or U.S.
Government Obligations then held by the Paying Agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuers, be paid or delivered to the Trustee and thereupon the Paying Agent
shall be released from all further liability with respect to such money or U.S.
Government Obligations.
SECTION 8.06. Return of Money, Securities or U.S. Government
Obligations. The Trustee and the Paying Agent shall promptly pay to the
Issuers upon request any excess money, U.S. Government Obligations or
Securities held by them at any time. Any money or U.S. Government Obligations
deposited with or paid to the Trustee or the Paying Agent for the payment of
the Principal of, or interest on any Security of any series and not applied but
remaining unclaimed for two years after the date upon which such Principal or
interest shall become due and payable, shall, upon the request of the Issuers
and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, be repaid or delivered to the Issuers by
the Trustee for such series or by the Paying Agent, and the Holder of the
Security of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuers for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or the Paying Agent with
respect to such money or U.S. Government Obligations shall thereupon cease.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Issuers and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency or to
make such provisions with respect to matters or questions arising
under this Indenture as may be necessary or desirable and not
inconsistent
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with this Indenture or with any indenture supplemental hereto or any
Board Resolution establishing any series of Securities, provided that
such amendment does not adversely affect the rights of
Securityholders;
(2) to comply with Section 5.01;
(3) to add additional covenants;
(4) to establish the form or forms or terms with respect
to Securities of any additional series as permitted by Section 2.01;
(5) to evidence and provide for the acceptance of
appointment of a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.08; or
(6) to provide for the exchange of Global Securities for
Securities issued hereunder in definitive form and to make all
appropriate changes for such purpose.
SECTION 9.02. With Consent of Holders. The Issuers and the Trustee
may amend this Indenture in a manner affecting the Securities of any series, or
may amend the Securities of such series, with the written consent of the
Holders of at least a majority in principal amount of the Securities of such
series. However, without the consent of each Securityholder affected, an
amendment under this Section may not:
(1) reduce the percentage in principal amount of
Securities whose Holders must consent to an amendment;
(2) reduce the rate of or change the time for payment of
interest on any Security;
(3) reduce the Principal of (or, in the case of Original
Issue Discount Securities, the amount of such Securities that would be
due and payable upon acceleration of the Maturity thereof pursuant to
Section 6.02), change the Stated Maturity of or reduce the amount
payable on redemption of or otherwise alter the requirements with
respect to the mandatory redemption of any Security;
(4) make any Security payable in money other than that
stated in the Security;
(5) make any change in Section 6.04 or 6.07 or this
Section 9.02; or
(6) modify the provisions of Article 10 in a manner
adverse to the Holders.
After an amendment under this Section becomes effective, the Issuers
shall mail to Securityholders a notice briefly describing the amendment.
An amendment under this Section may not make any change that adversely
affects the rights under Article 10 of any holder of an issue of Senior Debt of
any Issuer unless the holders of that issue, pursuant to its terms, consent to
the change.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities shall be set forth in a supplemental
indenture that complies with the Trust Indenture Act of 1939 as then in effect.
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SECTION 9.04. Effect of Consents. A consent to an amendment or
waiver by a Holder of a Security is effective upon delivery to the Trustee and
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security;
however, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder, except to the extent each Securityholder
affected must consent and such Securityholder did not do so.
SECTION 9.05. Notation on or Exchange of Securities. The Trustee may
place an appropriate notation about an amendment or waiver on any Security
thereafter authenticated. The Issuers in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment or
waiver.
SECTION 9.06. Trustee Protected. The Trustee need not sign any
supplemental indenture that adversely affects its rights.
ARTICLE 10
SUBORDINATION OF THE SECURITIES
SECTION 10.01. Subordination to Senior Debt of the Issuers.
The Securities shall be subordinate and junior in right of payment to
all Senior Debt of any Issuer as hereinafter provided in this Article 10. The
Issuers agree that such subordination is for the benefit of the holders of
Senior Debt of the Issuers.
SECTION 10.02. Permitted and Prohibited Payments.
(a) No part of the obligation to make any payment on the
Securities shall have any claim to the assets of an Issuer on a parity with or
prior to the claim of the Senior Debt of such Issuer. In the event and during
the continuation of any Senior Debt Default in respect of the Senior Debt of
any Issuer, no payment shall be made on the Securities (including any deposit
pursuant to Article 8 and any payment in respect of any repurchase, redemption
or other retirement of any Securities) unless and until such Senior Debt
Default shall have been remedied or waived, nor shall any such payment
(including any deposit pursuant to Article 8 and any payment in respect of any
repurchase, redemption or other retirement of any Securities) be made if after
giving effect, as if paid, to such payment, any Senior Debt Default of any
Issuer would exist; provided that with respect to a Senior Debt Default in
respect of the Senior Debt of any Issuer, other than a default in the payment
of the principal (including mandatory prepayments) of Obligations in respect of
or interest on, Senior Debt of such Issuer, and if specified by the Issuers in
a Board Resolution or indenture supplemental hereto adopted or entered into
pursuant to Section 2.01, nothing in this Section 10.02(a) shall prevent any
regularly scheduled payment of principal or interest on the Securities as and
when the same shall become due and payable in accordance with their terms by
such Issuer for the period to be specified in such Board Resolution or
indenture supplemental hereto.
(b) In the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the property, assets or business of any Issuer
or the proceeds thereof, to any creditor or creditors of such Issuer or upon
any Debt of such Issuer by reason of any liquidation, dissolution or other
winding up of such Issuer or its business or by reason of any sale,
receivership, insolvency or bankruptcy proceedings or assignment for the
benefit of creditors or any proceeding by or against such Issuer for any relief
under any bankruptcy, reorganization or insolvency law or laws, federal or
state, or any law, federal or state, relating to the relief of debtors,
readjustment of indebtedness, reorganization, composition or
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extension, or in the event of the occurrence and during the continuation of any
Senior Debt Default in respect of the Senior Debt of any of the Issuers (except
for any period during which payments in respect of the Securities may be made
notwithstanding the continuation of a Senior Debt Default, as set forth in
Section 10.02(a) above), then and in any such event, any payment or
distribution of any kind or character, whether in cash, property or securities
which, but for the subordination provisions set forth herein, would otherwise
be payable or deliverable upon or in respect of the Securities by such Issuer
shall, subject to Section 10.03(b), instead be paid over or delivered to the
holders of Senior Debt of such Issuer or their Representative or
Representatives for the equal and ratable benefit of the holders of Senior Debt
of such Issuer for application on account of the Senior Debt of such Issuer,
and the Holders shall not receive or retain any such payment or distribution or
any benefit therefrom until the Senior Debt of such Issuer is paid in full in
cash.
SECTION 10.03. Rights of Holders of Senior Debt.
(a) Should any payment or distribution or security or the proceeds
of any thereof be collected or received by the Trustee or any Holder from any
Issuer in respect of the Securities prior to the payment in full of the Senior
Debt of such Issuer, and such collection or receipt is prohibited hereunder,
the Trustee or such Holder, as the case may be, will forthwith deliver the same
to the Representative of the holders of the Senior Debt of such Issuer for the
equal and ratable benefit of the holders of the Senior Debt of such Issuer in
precisely the form received (except for the endorsement or the assignment of or
by the Trustee or such Holder, as the case may be, where necessary) for
application to payment of all Senior Debt of such Issuer in full, after giving
effect to any concurrent payment or distribution to the holders of the Senior
Debt of such Issuer and, until so delivered, the same shall be held in trust by
the Trustee or such Holder, as the case may be, as the property of the holders
of the Senior Debt of such Issuer.
All of the rights of the holders of the Senior Debt of any Issuer set
forth in the first paragraph of this Section 10.03(a) may be exercised by any
Representative or Representatives on behalf of the holders of the Senior Debt
of such Issuer. All payments and distributions received by any such
Representative or Representatives in respect of the Securities, to the extent
received in or converted into cash, may be applied by such Representative or
Representatives first to the payment of any and all expenses (including
attorneys' fees and legal expenses) paid or incurred by such Representative or
Representatives in enforcing the provisions hereof or in endeavoring to collect
or realize upon the Securities, and any balance thereof shall, solely as
between any Holder, on the one hand, and the holders of the Senior Debt of such
Issuer, on the other hand, be applied by such Representative or
Representatives, in such order of application as such Representative or
Representatives may from time to time select with the consent of the holders of
the Senior Debt of such Issuer, toward the payment of the Senior Debt of such
Issuer remaining unpaid.
Neither the Trustee nor any Holder shall be subrogated to the rights
of the holders of the Senior Debt of an Issuer to receive payments or
distributions of assets of such Issuer until the principal and interest on the
Senior Debt of such Issuer shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
such Issuer of any cash, property or securities to which any Holder would be
entitled except for these provisions shall, as among such Issuer, its creditors
other than the holders of the Senior Debt of such Issuer, and such Holder, be
deemed to be a payment by such Issuer to or on account of Senior Debt of such
Issuer. The provisions of this Article 10 are and are intended solely for the
purpose of defining the relative rights of Holders, on the one hand, and the
holders of the Senior Debt of the Issuers, on the other hand.
(b) Subject to the payment in full of all Senior Debt of an
Issuer, the Holders shall be subrogated (equally and ratably with the holders
of all subordinated Debt of such Issuer which, by its terms, is not senior in
right of payment to the Securities, and ranks on a parity with the Securities)
to the rights of the holders of all Senior Debt of such Issuer to receive
payments or distributions of cash, property or securities applicable to the
Senior Debt of such Issuer until the principal of, and interest on, the
Securities shall be paid in full as and when the same shall become due and
payable in accordance with their terms. For purposes of such subrogation, no
payments or
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distributions to the Holders of cash, property, securities or other assets by
virtue of the subrogation herein provided shall, as among such Issuer, its
creditors other than the holders of the Senior Debt of such Issuer and the
Holders, be deemed a payment to or on account of the Securities.
SECTION 10.04. Renewals and Extensions of Senior Debt of the Issuers.
The Trustee, on behalf of all initial Holders, hereby waives, and each
subsequent Holder by his acceptance of Securities thereby waives, any and all
notice of renewal, extension or accrual of any of the Senior Debt of any
Issuer, present or future, and agrees and consents that without notice to or
assent by the Trustee or any Holder:
(i) the obligations and liabilities of any and all
Issuers or any other party or parties for or upon the Senior Debt of
the Issuers, (and/or any promissory note(s), security document or
guaranty evidencing or securing the same) may, from time to time, in
whole or in part, be renewed, extended, modified, amended,
accelerated, compromised, supplemented, terminated, sold, exchanged,
waived or released;
(ii) any Representative or Representatives acting on
behalf of the holders of the Senior Debt of any Issuer and the holders
of the Senior Debt of any Issuer may exercise or refrain from
exercising any right, remedy or power granted by or in connection with
any agreements relating to the Senior Debt of such Issuer, and
(iii) any balance or balances of funds with any holder of
the Senior Debt of any Issuer at any time standing to the credit of
any Issuer, may from time to time, in whole or in part, be surrendered
or released;
all as any Representative or Representatives acting on behalf of the holders of
the Senior Debt of such Issuer and the holders of the Senior Debt of such
Issuer may deem advisable and all without impairing, abridging, diminishing,
releasing or affecting the subordination of the Securities to the Senior Debt
of such Issuer provided for herein.
SECTION 10.05. Obligation of Issuers to Pay Securities Not to be
Impaired.
Nothing contained in this Article 10 or elsewhere in this Indenture,
or in the Securities, is intended to or shall impair as between the Issuers and
the Holders the joint and several obligations of the Issuers, which are
absolute and unconditional, to pay to the Holders the Principal of and interest
on the Securities, as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the Holders
and other creditors of the Issuers other than the holders of the Senior Debt of
the Issuers, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture, subject to the rights, if any, under this Article
10 of the holders of the Senior Debt of any Issuers in respect of cash,
property or securities of such Issuers otherwise payable or delivered to such
holders upon the exercise of any such remedy. Upon any distribution of assets
of any of the Issuers referred to in this Article 10, the Trustee, subject to
the provisions of Sections 7.02 and 7.03, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt of the Issuers and the holders of
other Debt of the Issuers, the amount thereof or payable thereon the amount or
amounts paid or distributed thereon and all other facts pertinent thereto to
this Article 10.
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SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee or the taking of any other action under this Article 10 by the
Trustee unless and until the Trustee, subject to Section 10.07, shall have
received written notice thereof from an Issuer or from one or more holders of
the Senior Debt of an Issuer or from any trustee or Representative therefor
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Sections 7.02 and 7.03, shall be entitled in all respects
conclusively to assume that no such facts exist.
SECTION 10.07. Application by Trustee of Monies Deposited With It.
Money or securities deposited in trust with the Trustee pursuant to
and in accordance with Section 8.02 shall be for the sole benefit of
Securityholders and, to the extent allocated for the payment of Securities,
shall not be subject to the subordination provisions of this Article 10.
Otherwise, any deposit of monies by any Issuer with the Trustee or any Paying
Agent (whether or not in trust) for the payment of the principal of or interest
on any Securities shall be subject to the provisions of Sections 10.01, 10.02,
10.03 and 10.04 except that, if three Business Days prior to the date on which
by the terms of this Indenture any such monies may become payable for any
purpose (including, without limitation, the payment of either the Principal of
or the interest on any Security), the Trustee shall not have received with
respect to such monies the notice provided for in Section 10.06, then the
Trustee or the Paying Agent shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
during or after such three Business Days. This Section shall be construed
solely for the benefit of the Trustee and Paying Agent and shall not otherwise
affect the rights of holders of the Senior Debt of any Issuer.
SECTION 10.08. Securityholders Authorize Trustee to Effectuate
Subordination of Securities.
Each Holder by his acceptance of Securities authorizes and expressly
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 10 and
appoints the Trustee his attorney-in-fact for such purpose, including, in the
event of any dissolution, winding up, liquidation or bankruptcy reorganization
of any of the Issuers (whether in bankruptcy, insolvency or receivership
proceedings or upon a general assignment for the benefit of creditors or any
other similar remedy or otherwise) tending towards liquidation of the business
and assets of any of the Issuers, the immediate filing of a claim for the
unpaid balance of its Securities in the form required in said proceedings and
causing said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the
holders of the Senior Debt of the applicable Issuer are hereby authorized to
have the right to file and are hereby authorized to file an appropriate claim
for and on behalf of the Holders, provided that the Trustee has received
written notice of any such proposed filing three Business Days prior thereto.
SECTION 10.09. Right of Trustee to Hold Senior Debt.
The Trustee shall be entitled to all of the rights set forth in this
Article 10 in respect of any Senior Debt of any Issuer at any time held by it
to the same extent as any other holder of the Senior Debt of such Issuer, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 10.10. Article 10 Not to Prevent Events of Default.
The failure to make a payment on account of the Principal of or
interest on the Securities by reason of any provision of this Article 10 shall
not be construed as preventing the occurrence of an Event of Default under
Section 6.01.
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SECTION 10.11. No Fiduciary Duty Created to Holders of Senior Debt of
the Issuers.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Debt of any Issuer by virtue of the provisions of this
Article 10.
SECTION 10.12. Miscellaneous.
Each Holder by his acceptance of the Securities acknowledges and
agrees that the holders of the Senior Debt of the Issuers have relied upon and
will continue to rely upon the subordination provided for herein in entering
into the agreements relating to Senior Debt of the Issuers and in extending
credit to the Issuers pursuant thereto.
No present or future holder of the Senior Debt of any Issuer shall be
prejudiced in its right to enforce the subordination provisions contained
herein in accordance with the terms hereof by any act or failure to act on the
part of any of the Issuers or any Holder.
The subordination provisions contained in this Article 10 are for the
benefit of the holders of the Senior Debt of the Issuers from time to time and,
so long as Senior Debt of any Issuer is outstanding under any agreement, may
not be rescinded or cancelled or modified in any way without the prior written
consent thereto of the requisite percentage of holders of the Senior Debt of
the Issuers as provided in such agreements under which any Senior Debt of the
Issuers is outstanding.
The provisions in this Article 10 shall be binding upon each Holder
and upon the heirs, legal representatives, successors and assigns of each such
Holder.
SECTION 10.13. Article Applying to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuers and be then acting hereunder, the term "Trustee"
as used in this Article 10 shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article 10 in addition to or in place of the Trustee.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision that is
deemed to be included in this Indenture by the TIA, the required provision
shall control. The provisions of TIA Section Section 310 through 317 that
impose duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a part of and
govern this Indenture whether or not physically contained herein.
SECTION 11.02. Notices. Any notice or communication by the Issuers
or the Trustee to the other shall be in writing and shall be delivered in
person or mailed by first-class mail to the other's address stated in Section
11.11; provided, however, that any such notice shall be deemed duly given when
such notice is received by the Issuers or the Trustee, as the case may be. The
Issuers or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the Security Register. Failure to
mail a notice or communication to a Securityholder or any defect in a notice
shall not affect the sufficiency thereof with respect to any other
Securityholders.
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Except as provided above, if a notice or communication is mailed in
the manner and within the time prescribed above, it shall be deemed duly given,
whether or not the addressee receives it.
If the Issuers mail a notice or communication to Securityholders, they
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and anyone else affected
shall be entitled to the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take any
action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such person, such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officers know that the opinion
with respect to the matters upon which their certificate may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters the information with respect to which is in the
possession of the Issuers, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuers, unless such counsel
knows that the certificate, statement or opinion or representation with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid is erroneous, or in the exercise of reasonable care should know that
the same is erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant (who may be an employee of the
Issuers), or firm of accountants, unless such Officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to
the accounting matters upon which the certificate, statement or opinion may be
based as aforesaid is erroneous, or in the exercise of reasonable care should
know that the same is erroneous.
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Any certificate or opinion of any independent firm of public accountants filed
with the Trustee shall contain a statement that such firm is independent.
SECTION 11.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by written consent or at a meeting of Holders of
Securities of any series. The fact and date of the execution of a written
consent or other writing by any such person shall be established in accordance
with the procedures specified in such reasonable rules, and the ownership of
Securities of any series shall be established by the Security Register for such
series maintained by the Registrar. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.
SECTION 11.07. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions in any place of payment are not
required to be open. If a payment date with respect to a particular series of
Securities is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.08. No Recourse Against Others. No person shall have any
recourse under or upon any obligation or agreement of the Issuers under this
Indenture or the Securities of any series or because of any debt evidenced by
the Securities of any series against any stockholder, officer, employee or
director, as such, of any of the Issuers. By accepting a Security of any
series, each Holder waives and releases all such liability as a part of the
consideration for the issuance thereof.
SECTION 11.09. Interest Limitation. If any usury law now or at any
time hereafter in force shall be applicable to this Indenture or the Securities
of any series or any other document or instrument related hereto or thereto, it
is the intention of the Issuers and the Trustee to conform strictly to any such
usury laws and any subsequent revisions or repeals thereof. In furtherance
thereof, the Issuers and the Trustee stipulate and agree that none of the terms
and provisions contained in this Indenture or the Securities of any series or
any other document or instrument related hereto or thereto shall ever be
construed to give rise to a contract or obligation to pay interest in excess of
the maximum amount permitted to be contracted for, taken, reserved, charged,
collected or received under any applicable law.
SECTION 11.10. Duplicate Originals. The parties may sign any number
of copies of this Indenture. One signed copy is enough to prove this
Indenture.
SECTION 11.11. Addresses.
The Issuers' address is:
MESA Inc.
Mesa Operating Co.
2001 Ross Avenue, Suite 2600
Dallas, Texas 75201
Attention: Treasurer
The Trustee's address is:
{TO COME}
SECTION 11.12. Record Date for Action by Securityholders. The
Issuers (or, if a deposit has been made pursuant to Section 8.02 or if an Event
of Default has occurred, the Trustee) may set a record date for purposes
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of determining the identity of Holders entitled to vote or consent to any
action by vote or consent authorized or permitted under this Indenture, which
record date shall be no later than ten days nor more than 30 days prior to the
first solicitation of such vote or consent or the date of the most recent list
of Holders furnished to the Trustee pursuant to Section 2.05 hereof prior to
such solicitation. If a record date is fixed, those persons who were Holders
of Securities at such record date (or their duly designated proxies), and only
those persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
SECTION 11.13. Governing Law. The laws of the State of New York
shall govern the construction and interpretation of this Indenture and the
Securities, without regard to principles of conflicts of laws. The Issuers
irrevocably submit to the non-exclusive jurisdiction of any United States
federal or New York state court sitting in The City of New York in any action
or proceeding arising out of or relating to this Indenture or the Securities,
and the Issuers irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in any such court.
SECTION 11.14. Payments for Consent. None of the Issuers shall,
directly or indirectly, pay or cause to be paid, or cause any of their
Affiliates to pay or cause to be paid, any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Securities, unless such consideration is offered to be paid to
all Holders whose consent, waiver or agreement to amend is required for the
Issuers to effect such consent, waiver or amendment.
SECTION 11.15. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.16. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of any of the Issuers or their respective Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.17. Severability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 11.18. Successors. All agreements of the Issuers in this
Indenture and the Securities shall bind their successors. All agreements of
the Trustee in this Indenture shall bind its successor.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
MESA INC.
By______________________________________
{Name}
{Title}
MESA OPERATING CO.
By______________________________________
{Name}
{Title}
{NAME OF TRUSTEE}
By______________________________________
{Name}
{Title}
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